WAS THE LAPTOP COMPUTER VALIDLY SEIZED UNDER s 3F?
85 It is, strictly speaking, unnecessary to consider this issue. However, in case I am wrong about the consequences of the non-compliance with s 3H(1), I think it is preferable that I should do so.
86 Subject to the applicant's contentions regarding "seizure" of documents to which legal professional privilege may attach, Federal Agent Capaldo was authorised to seize the laptop computer pursuant to s 3F(1)(c) if all of the three conditions set out in the Birchgrove warrant were satisfied in respect of that item. The first condition was satisfied: the warrant specifically listed a laptop computer as an item that might be seized subject to the other conditions of the warrant being satisfied. The second condition was satisfied: Mrs Oke informed Federal Agent Capaldo that the laptop computer belonged to Mr Oke. The remaining condition was that there were reasonable grounds for suspecting that the laptop computer would afford evidence as to the commission of the specified offences. The wording of the third condition of the Birchgrove warrant expressly picked up the language of the definition of "evidential material" in the Act, so as to authorise the seizure of an item pursuant to s 3F(1)(c) of the Act.
87 Essentially, therefore, what was required for valid seizure of the laptop computer (subject to issues of legal professional privilege) was that Federal Agent Capaldo had reasonable grounds for suspecting that the information on the laptop computer would afford evidence as to the commission of the alleged offences. The distinction drawn by Mr Oke's counsel in submissions between a "suspicion" and a "belief" is not helpful in resolving that question of fact. The question is whether Federal Agent Capaldo had reasonable grounds for that suspicion.
88 Mr Oke contended that Federal Agent Capaldo did not, at any time, hold the requisite state of mind which would have entitled her to legally seize the laptop computer pursuant to s 3F of the Act. It is common ground between the parties that the laptop computer was never switched on, and its files were never inspected by the AFP officers, during the execution of the Birchgrove warrant.
89 Federal Agent Capaldo gave evidence, which I accept, that she did not inspect the files on the laptop computer during the execution of the Birchgrove warrant firstly because of Mr Rydon's blanket claim of legal professional privilege; and secondly because she was advised by an AFP officer assisting that attempting to access the files may cause damage to the laptop computer.
90 The cross-examination of Federal Agent Capaldo exposed that there was some difference of opinion between her and certain other AFP officers as to whether the laptop computer had been "seized" pursuant to the Birchgrove warrant, requiring her as the executing officer to have had the belief on reasonable grounds that it contained evidential material relating to the offences to which the Birchgrove warrant related. Some officers considered that, in the events which happened, the taking of the laptop computer was a removal under s 3K(2) for processing or examining it to see if it could be seized under the Birchgrove warrant. Hence the application on 26 June 2004 under s 3K(3B) referred to above. As noted, that application was unsuccessful in essence because Federal Agent Capaldo's evidence then, as now, was that the laptop computer had been seized under the Birchgrove warrant. It also led to the application for the further search warrant on 2 July 2004, in the circumstances referred to above.
91 Federal Agent Capaldo's credit was challenged in part because of her being party to those events themselves, and in part because she used variously the words "seized" and "removed" in respect of the documents associated with those subsequent processes. The terms clearly have significantly different connotations under s 3E and s 3K. She acknowledged that, in June 2004, she did not appreciate fully the legal significance of those different terms, and to an extent used those terms in the materials referred to somewhat loosely and on the advice of others. I was impressed by her frankness in that regard, and rather than use that material to reject her evidence I think it tends to support the impression I formed of her as a witness of truth. I must add, however, that I also formed the view that she held a firm view as to the direction the general investigation was going, and that Mr Oke's attitude in the circumstances was an impediment to the process of the investigation, so that her dealings with him on 24 June 2004 were not amicable. My acceptance of her evidence generally leads to the finding that, at the time of the seizure of the laptop computer on 24 June 2004, Federal Agent Capaldo did believe that it contained evidential material in relation to the offences being investigated.
92 It does not necessarily follow that that belief was held on reasonable grounds.
93 Federal Agent Capaldo's evidence was that between February and June 2004, in the course of an investigation concerning Mr Oke and Ozone, she obtained information from various entities and persons regarding the alleged commission of the offences, including evidence as to the contents of the files stored on Mr Oke's laptop computer. She considered that those contents (or some of them) were likely to constitute evidential material for the purposes of the Act.
94 The material to support that belief, as identified by the respondent, includes the application for the Birchgrove warrant sworn by Federal Agent Capaldo (of which a redacted version only was received into evidence), and her affidavit of 18 January 2006 (of which also a redacted version only was received into evidence) as well as her oral evidence. The redacted version of the application for the search warrant gives background information only. In a general way, the affidavit of 18 January 2006 identifies sources of information which pointed to the laptop computer holding relevant evidential material. The sources are not revealed in that version of the affidavit. The cross-examination exposed that certain information elsewhere referred to in the affidavit, obtained in the course of the investigation, may not have been directly relevant to it. However, Federal Agent Capaldo did not rely on that part of the affidavit to support the belief referred to, and in context I think those other references were merely general descriptions of processes so as generally to be comprehensive.
95 As I accept Federal Agent Capaldo as a witness of truth, I accept that she did obtain information procured in the course of the investigation which pointed to the prospect of the laptop computer holding relevant evidential material. On that basis, I am satisfied that her belief that the laptop computer held such evidential material was held on reasonable grounds. I do not consider it was necessary for the contents of the laptop computer to have been accessed in any way on 24 June 2004 for such a belief to have been based on reasonable grounds.
96 Accordingly, subject to considering the contentions regarding the significance of the claim of legal professional privilege, in my judgment - had the Birchgrove warrant been validly executed, contrary to my earlier conclusion - the laptop computer would have been properly seized under that warrant.
97 The respondent contended alternatively that the AFP had at all relevant times been in lawful possession of the laptop computer by Mr Oke's acquiescence. That acquiescence is said to be the arrangement entered into at about 11.15 am on 24 June 2004 as recorded in [30] above.
98 I do not accept that contention. The arrangement was made in the face of officers of the AFP being in the process of executing the Birchgrove warrant, and doing so in a way which involved them asserting the entitlement to inspect any documents, whether the subject of legal professional privilege or not. Those officers assumed to themselves the entitlement to determine if a document might be privileged by their inspection of it, and only then would put it aside. They were not entitled to seize or inspect privileged documents, as discussed below. The offer of permitting Mr Rydon contemporaneous inspection did not entitle them to seize or inspect privileged documents. In any event, as the search was taking place by several officers in more than one room, the offer was a hollow one.
99 In those circumstances, the arrangement was no more than one as to the more appropriate management of documents seized under the warrant, there being no removal under s 3K(2). I do not accept that Mr Oke consented in any real way to the AFP taking and holding the seized documents, including the laptop computer.
THE CLAIM OF LEGAL PROFESSIONAL PRIVILEGE
100 Again, it is appropriate to preface my consideration of this issue by remarking that it is strictly speaking unnecessary to decide it in view of my conclusion about the consequences of the breach of s 3H(1).
101 In Baker v Campbell 153 CLR 52, the High Court by majority concluded that, in the event that legal professional privilege attaches to and is maintained in respect of documents held by a legal firm, those documents cannot properly be made the subject of a search warrant issued under s 10 of the Act. Section 10 of the Act has since been repealed but it is similar, for present purposes, to the relevant parts of ss 3E and 3F. In Baker v Campbell it was assumed that the documents in issue were privileged, as the matter was heard on a case stated.
102 The practical difficulties which may arise in circumstances where legal professional privilege is claimed in respect of documents which would otherwise fall within the terms of a search warrant were recognised by Wilson J, who said (at 97):
"It is asserted that a claim of privilege in circumstances where the proceedings in respect of which it is made have not begun immediately raises procedural difficulties if the claim is contested. There is no judge already seized of jurisdiction in the matter to determine the disputed claim. The interests of all parties must be protected pending a determination of the dispute. In my experience the procedural difficulties can be overcome consistently with that objective if the members respectively of the police force and the legal profession co-operate in a reasonable and responsible way. I do not think that it is necessary for the purposes of the stated case to explore the problem."
103 Following the decision in Baker v Campbell, the Law Council of Australia and the AFP entered into an agreement as to the manner in which such claims should be treated. The terms of that agreement form the guidelines contained in the privilege notice and which were attached to the original Birchgrove warrant.
104 The privilege notice reads as follows:
"If a claim is made for legal professional privilege in respect of any document covered by the warrant, and if the person claiming privilege is prepared to co-operate with the executing officer, the following procedure will be followed to the extent to which it is possible to do so:
1. The executing officer or a constable assisting will prepare a list of the relevant documents in cooperation with the person claiming privilege. The list will show the general nature of each document, the ground on which privilege is claimed, and the name of the person claiming privilege;
2. The documents will be placed in an envelope or other container which will be sealed;
3. The list and the container will be endorsed with a note to the effect that, having regard to the claim for privilege, the warrant has not been executed in respect of the documents set out in the list and that those documents have been sealed in the container pending resolution of the claim;
4. The list and the container will be signed by the executing officer or constable assisting and the person claiming privilege;
5. The sealed container and a copy of the list will be delivered to a third party agreed between the executing officer or constable assisting and the person claiming privilege;
6. The third party shall hold the container and the copy of the list pending resolution of the claim for privilege;
7. Subject to any agreement to the contrary, the person claiming privilege will have four working days after delivery to the third party in which to commence proceedings to establish the privilege claimed. If proceedings are commenced within that time the sealed container and the copy of the list will be delivered to the registrar of the court in which the proceedings have been brought. The documents will then be held by the registrar pending the order of the court;
8. Subject to paragraph 9, if proceedings are not commenced within four working days, or such other period as may be agreed, the third party will deliver the documents, or such of them as the executing officer still wishes to examine, to the executing officer;
9. Nothing in this document prevents the executing officer from discussing a claim for privilege with the person raising the claim. If agreement can be reached on which documents are covered by legal professional privilege, and which are not, the third party will be asked to act in accordance with that agreement.
If the person claiming legal professional privilege is not prepared to cooperate with the executing officer, it will normally be necessary for the executing officer or a constable assisting to examine each relevant document to determine whether there is a proper basis for seizure."